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Two things, the first of which you’ve no doubt realized already:
1. The lower court rulings of the last year have not only been unanimous in favor of marriage equality under the 14th Amendment; they have been unanimous in relying on Lawrence, Windsor or both. Not a single opinion affirming the right to marry relies in any substantive way on the Court’s ruling in Perry, if it even mentions the case, because Perry offers no such support. Windsor, building on Lawrence and Loving, was the bomb that burst the dam; Perry was a well-intended miss. Anybody – particularly any accomplished attorney who practices constitutional law – who touts Perry as the seminal legal breakthrough for marriage equality in this country is committing a fraud.
And as a constitutional lawyer myself, I can assure you that none of the attorneys who have argued for equality in federal court over the last year have said that about Perry in any of their cases. One’s credibility as an advocate is too precious to come into court and say something so obviously wrong and stupid.
2. One of the conditions that traditionally gets the Supreme Court’s attention in petitions for certiorari – that is, that persuades the Court to hear a case – is a split among lower courts in interpretations of federal law, whether it’s legislation or the Court’s own precedent. As of this morning, that condition does not exist with respect to same-sex marriage, despite a very high number of lower court opinions on marriage equality in the year since Windsor.
Another condition for certiorari is the presence of an issue of pressing national importance. Marriage equality qualifies there, of course, but public opinion is moving faster right now than the federal appellate process, and there is not one whit of evidence that support for marriage equality will do anything in the meantime but increase. By the time the question gets back to the Court, if it ever does, equality in the minds of a big majority will be a done deal. And when that case gets there, those lawyers will be arguing over whether Windsor compels a ruling in favor of equality. Nobody will mention Perry, unless the jurisdictional issue of standing is a problem.
We may look back in a decade or two and thank Justice Kennedy for keeping an even hand on the till, in Burkean fashion, as he kept the Court at a safe distance from a social and moral contest that a dramatic Court ruling would only have inflamed. The issue of pressing national importance that gets the Court’s attention in a petition for cert is one that needs the Court’s resolution. There is a long way to go, and some very conservative courts to hear from (the right-wing Fifth Circuit Court of Appeals will be an interesting indicator), but I’m not sure marriage equality will need much more than ceremonial resolution from the Court by the time it hears the question again.
1. The lower court rulings of the last year have not only been unanimous in favor of marriage equality under the 14th Amendment; they have been unanimous in relying on Lawrence, Windsor or both. Not a single opinion affirming the right to marry relies in any substantive way on the Court’s ruling in Perry, if it even mentions the case, because Perry offers no such support. Windsor, building on Lawrence and Loving, was the bomb that burst the dam; Perry was a well-intended miss. Anybody – particularly any accomplished attorney who practices constitutional law – who touts Perry as the seminal legal breakthrough for marriage equality in this country is committing a fraud.
And as a constitutional lawyer myself, I can assure you that none of the attorneys who have argued for equality in federal court over the last year have said that about Perry in any of their cases. One’s credibility as an advocate is too precious to come into court and say something so obviously wrong and stupid.
2. One of the conditions that traditionally gets the Supreme Court’s attention in petitions for certiorari – that is, that persuades the Court to hear a case – is a split among lower courts in interpretations of federal law, whether it’s legislation or the Court’s own precedent. As of this morning, that condition does not exist with respect to same-sex marriage, despite a very high number of lower court opinions on marriage equality in the year since Windsor.
Another condition for certiorari is the presence of an issue of pressing national importance. Marriage equality qualifies there, of course, but public opinion is moving faster right now than the federal appellate process, and there is not one whit of evidence that support for marriage equality will do anything in the meantime but increase. By the time the question gets back to the Court, if it ever does, equality in the minds of a big majority will be a done deal. And when that case gets there, those lawyers will be arguing over whether Windsor compels a ruling in favor of equality. Nobody will mention Perry, unless the jurisdictional issue of standing is a problem.
We may look back in a decade or two and thank Justice Kennedy for keeping an even hand on the till, in Burkean fashion, as he kept the Court at a safe distance from a social and moral contest that a dramatic Court ruling would only have inflamed. The issue of pressing national importance that gets the Court’s attention in a petition for cert is one that needs the Court’s resolution. There is a long way to go, and some very conservative courts to hear from (the right-wing Fifth Circuit Court of Appeals will be an interesting indicator), but I’m not sure marriage equality will need much more than ceremonial resolution from the Court by the time it hears the question again.
So it may be that the decisions of the federal courts may be say overwhelmingly opposed to SSM bans that SCOTUS might not even bother hearing the case, or if they do they'll be doing little more than tying up loose ends. The nation is moving fast on this issue.
